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Exhibit 4.4
PROGRESSIVE TELECOMMUNICATIONS CORPORATION
REGISTRATION RIGHTS AGREEMENT
AGREEMENT made this ____ day of ________________, 1999 by and between
Progressive Telecommunications Corporation, a Nevada corporation, having an
address at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (the
"Company"), and _______________ _________________having an address at
___________________________________________, (the "Holder").
W I T N E S S E T H:
WHEREAS, the Company has issued to the Holder Units (the "Units")
consisting of shares of Common Stock (the "Common Stock") and Warrants to
purchase shares of the Company's Common Stock (the "Warrants").
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in paragraph 4.
"Registrable Shares" means the Shares of Common Stock which are part
of the Units and which maybe issued to Holder upon the exercise of the
Warrants, and, any other shares of Common Stock of the Company issued in
respect of such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events) or upon exercise of
such Warrant; provided, however, that shares of Common Stock which are
Registrable Shares shall
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cease to be Registrable Shares upon any sale pursuant to a Registration
Statement, Section 4(1) of the Securities Act or Rule 144 under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may from time to time, be in effect.
2. REGISTRATION.
(a) When the Company proposes to file a Registration Statement for a
public offering, it will, prior to such filing, give written notice to the
Holder of its intention to do so and, upon the written request of the Holder
given within twenty (20) days after the Company provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall cause all Registrable Shares which the Company has
been requested by the Holder to register to be registered under the Securities
Act to the extent necessary to permit their sale or other disposition in
accordance with the intended method of distribution specified in the request of
such Holder; provided that the Company shall have the right to postpone or
withdraw any registration effected pursuant to this paragraph 2 without
obligation to the Holder. The foregoing rights shall expire and have no effect
on any Registration Statement filed after December 31, 2000.
(b) The Holder's rights under this paragraph shall be subject of the
limitation that, in the event that the Company files a Registration Statement
for an underwritten public offering or if another Holder initiates a
Registration, intending to distribute their Shares in an Underwritten Offering,
the inclusion of the Registrable Shares shall be upon the condition that: (i)
if requested by the managing underwriter as a condition of the offering, they
be sold through the underwriters on the same terms and conditions as are
applicable to the Company or all other selling stockholders of the Company; or
(ii) if such condition is imposed by the managing underwriter, and the Holder
does not wish to sell the Registrable Shares upon such terms and conditions,
the Holder will agree not to transfer or otherwise dispose of any Registrable
Shares for a period of time from the effective date of the Registration
Statement (not to exceed 120 days) specified by the managing underwriter.
(c) All registration rights under this paragraph 2, shall terminate on
December 31, 2000.
3. REGISTRATION PROCEDURES.
The Company is required by the provisions of this Agreement to use its
best efforts to effect the registration of any of the Registrable Shares under
the Securities Act, and the Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
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(b) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than nine months from
the effective date;
(c) as expeditiously as possible furnish to Holder such reasonable
numbers of copies of the prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder and promptly notify the selling stockholder at any
time when a prospectus is required to be delivered under the Securities Act, of
the happening of any event as a result of which the prospectus would include an
untrue statement of material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; provided, however, that the Company shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
Holder and, after having done so, the prospectus is amended to comply with the
requirements of the Securities Act, the Company shall promptly notify the
Holder and, if requested, the Holder shall immediately cease making offers of
Registrable Shares and return all prospectuses to the Company. The Company
shall promptly provide the Holder with revised prospectuses and, following
receipt of the revised prospectuses, the Holder shall be free to resume making
offers of the Registrable Shares.
4. ALLOCATION OF EXPENSES.
The Company will pay all Registration Expenses of all registrations
under this Agreement; provided, however, that if a registration is withdrawn at
the request of the Holder (other than as a result of information concerning the
business or financial condition of the Company which is made known to the
Holder after the date on which such registration was requested), the Holder
shall pay the portion of Registration Expenses in the proportion that the
market value of their Registrable Shares included in such registration bear to
all of securities included therein. For purposes of this Section, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and
disbursements of counsel for the Company state Blue Sky fees and expenses, and
the expense of
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any special audits incident to or required by any such registration, but
excluding underwriting discounts, selling commissions and the fees and expenses
of Holder's own counsel.
5. INDEMNIFICATION.
In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Shares, and its directors and
officers, each underwriter of such Registrable Shares, and each other person,
if any, who controls such seller or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, in so far as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable
Shares were registered under the Securities Act, any preliminary prospectus or
final prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, and any document incorporated
therein by reference or arise out of or are based upon the omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Company will reimburse such
seller, underwriter and each such controlling person for any legal or any other
expenses reasonably incurred by such seller, underwriter or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, and officers and each underwriter (if any) and
each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriters or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such seller, specifically for
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use in connection with the preparation of such Registration Statement,
prospectus, amendment or supplement; provided, however, that the obligations of
such Stockholders hereunder shall be limited to an amount equal to the proceeds
to each Stockholder of Registrable Shares sold as contemplated herein.
Each party entitled to Indemnification under this paragraph 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom; providing, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement. The Indemnified
party may participate in such defense at such party's expense; provided,
however, that the Indemnifying Party shall pay such expense if representation
of such Indemnified party by the counsel retained by the Indemnifying Party
would be inappropriate due to actual or potential differing interests between
the Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
6. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING.
In the event that Registrable Shares are sold pursuant to a
Registration Statement in an underwritten offering pursuant to paragraph 2, the
Company agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of
an issuer of the securities being registered and customary covenants and
agreements to be performed by such issuer, including without limitation
customary provisions with respect to indemnification by the Company of the
underwriters of such offering.
7. INFORMATION BY HOLDER.
The Holder shall furnish to the Company such information regarding
such holder and the distribution proposed by such holder as the Company may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
8. SELECTION OF UNDERWRITER.
In the case of any registration effected pursuant to this Agreement,
the Company shall have the right to designate the managing underwriter in any
underwritten offering.
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9. SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon, and inure to
the benefit of, the respective successors, assigns, heirs, executors and
administrators of the parties hereto.
10. FURTHER ASSURANCES.
From and after the date hereof, all persons subject to or bound by
this Agreement shall from time to time, at the request of any such other person
and without further consideration, do, execute and deliver, or cause to be
done, executed and delivered, all such further acts, things and instruments as
may reasonably be requested or required more effectively to evidence and give
effect to the provisions, intent and purposes of this Agreement (including,
without limitation, certificates to the effect that this Agreement continues
operative and as to any defaults hereunder or modifications hereof).
11. NOTICE.
All notices, requests, demands, offerings, acceptances, consents and
other communications required or permitted under this Agreement shall, unless
otherwise provided, be in writing and shall be deemed to have been duly given
if personally delivered and actually received or if mailed by first class
registered or certified mail, return receipt requested, or by first class mail,
addressed to the parties hereto at their respective addresses set forth on the
first page of this Agreement or in each case to such other person or address as
may be designated by notice hereunder. Any such notice, etc. shall be deemed
given on the date of delivery, if delivered, or on the fifth day after the date
of mailing, if mailed.
12. GOVERNING LAW; INTERPRETATION.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida applicable to contracts made
and to be performed exclusively therein as to all matters, without reference to
the conflicts of law provision thereof.
(b) All pronouns and words shall be read in appropriate number and
gender, the masculine, feminine and neuter shall be interpreted interchangeably
and singular shall include the plural and vice versa, as the circumstances may
require.
13. SUBMISSION TO JURISDICTION.
Each of the parties hereto irrevocably submits to the non-exclusive
jurisdiction of the federal and state courts located in the State of Florida.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals to this instrument, as of the date first above written.
PROGRESSIVE TELECOMMMUNICATIONS
CORPORATION
By:
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Xxxxx X. Xxxxxxx, CEO
HOLDER:
By:
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Name:
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